1806078 (Refugee)

1806078 (Refugee) [2021] AATA 3537 (9 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1806078
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Mr S Norman
DATE:9 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 09 July 2021 at 11:05am
CATCHWORDS
REFUGEE – Protection Visa – Iraq –religion – Assyrian Chaldean Catholic Christian – health conditions – membership of a particular social group – persons suffering from mental health conditions in Iraq – effective protection measures not available to applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.
The applicant attended the Department interview on 9 February 2018. The applicant who claims to be a citizen of Iraq, applied for the visa on 10 January 2017. The applicant was assisted by an interpreter.
The applicant attended a Tribunal hearing on 5 July 2021. The Tribunal also received witness evidence from the applicant’s daughter and granddaughter. The Tribunal was assisted by an interpreter at hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Meaningful opportunity to give evidence:
In post Department interview submissions from the agent, the delegate was advised the (then [age] year old) applicant ‘had been unable to effectively present and support his claims, that the applicant’s first language is Assyrian, that the presence of an Arabic interpreter caused the applicant to switch from his mother tongue’. Put briefly, the delegate noted that in the applicant’s Protection Visa application he claimed to be able to speak both Arabic and Assyrian and that an interpreter in either language would suffice. The delegate also believed that at the Department interview the applicant appeared to be focused and engaged, contrary to the post hearing submissions by the agent. The delegate was ultimately satisfied the applicant was given a meaningful opportunity to appear and give evidence.
By Health [NSW] letter dated 11 August 2020, the (now [age] year old) applicant lodged evidence of a range of health issues - including but not limited to, [details deleted]. Further medical reports were lodged with the agent’s submissions of 23 June 2021. One dated 23 June 2021 stated that the applicant ‘obtained a score of 29 on the depression subscale, placing him in the Extremely Severe symptom category, experiencing clinically-significant symptoms of anxiety and depression, as well as moderately elevated symptoms of stress convergent with self-reported emotional difficulties. The features of depression presented by the Applicant is overall consistent with his refugee claims, particularly the following primary factors that would act in a cumulative fashion’.
These were said to be:
·     Traumatic experiences he had in Iraq which include violence, torture, kidnapping and flight.
·     Living in a state of limbo: the sense of being trapped in a prison-like environment as he is waiting for his protection visa-outcome, as well as he is scared to go back to Iraq and witness torture there.
·     Aging: Ongoing age-related physical problems that are deteriorating over time.
The doctor then provided ‘treatment recommendations’. The agent felt certain that any evidentiary inconsistency identified in the Department decision, was due to the applicant’s mental health.[1]
[1] Agent submissions dated 23 June 2021, at [25]
On the day of the Tribunal hearing, the agent lodged further evidence of the applicant’s health. Amongst other things, evidence was provided regarding the ageing applicant’s mental condition.
At the Tribunal hearing, and with respect, the now [age] year old applicant appeared confused and forgetful. The Tribunal allowed his daughter to provide evidence on the applicant’s behalf, however, as she was not in Iraq at the time of some material events, the daughter was not certain of all the issues being discussed. Be that as it may, the Tribunal was ultimately satisfied it was able to make findings on material issues, which has allowed it to determine the case.
The applicant’s citizenship / s.36(3)-(5A):
As noted in the Department delegate’s decision and adopted by the Tribunal, the applicant provided:
[A certified copy of the Iraqi passport, a certified copy of the Certificate of Iraqi Citizenship, Iraqi photo identity Card. On 20 January 2017 the applicant attended a biometrics appointment and provided his photograph and fingerprints].
The country information before the Tribunal included:
5.40 Returning Iraqis who are not in possession of an Iraqi passport must apply for a laissez passer at an Iraqi embassy or consulate abroad. … Laissez passers are common and individuals who enter on laissez passers are not questioned about how they exited Iraq, nor asked to explain why they do not have other forms of documentation.[2]
[2] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
After considering same, the Tribunal accepts the applicant is a citizen of Iraq, and that Iraq is his receiving country. The Tribunal also accepts the applicant may obtain travel documentation in order to return to Iraq, given his passport had now expired.
In the absence of material evidence to the contrary, the Tribunal accepts the applicant does not have protection pursuant to s.36(3)-(5A) of the Act.
The applicant’s migration history:
The applicant last entered Australia on [date] December 2016. His migration history included: [details deleted][3]
The applicant’s claims:
[3] Agent submissions dated 25 June 2021, at [8].
In agent submissions dated 25 June 2021, it was claimed the applicant worked as [an occupation] and since retiring in 2006, he had supported himself by farming. The agent also conceded the applicant travelled to [various countries] for holidays on multiple occasions and willingly returned to Iraq. Though the applicant had travelled (for reasons including escorting his daughters, and he took steps to minimise danger), the agent believed the travel was equivalent to the issue referred to in the UNHCR Handbook (at [125]), which related to inter alia, returning to the country where persecution is feared for reasons like visiting a sick relative.
The applicant’s claims also included that he was born on [date] (currently [age] years of age at the time of the Tribunal hearing). The applicant also claimed:
·     he is an Assyrian Chaldean Catholic Christian from (initially) [Town 1] (though other spellings were used in the applicant’s evidence, it was spelt [different spelling of Town 1] on Google Maps – and it is located [details deleted], in Dohuk. He said his village was mostly populated by Christians
·the delegate noted that [Town 1] is an Assyrian town [details deleted]
·     he was widowed [in] May 2007; [number] children arose from the union ([some] of whom have passed away)
·     he said that in the late 1950s, a Muslim militia group destroyed his entire village and forced the inhabitants to leave for other cities or to travel to neighbouring countries like Syria or Turkey. However, one year later his family were able to return to their village
·     two years after their return (early 1960’s) Muslim Kurds abducted three men from their village and their whereabouts remain unknown
·     Kurdish Muslims also harassed the locals and ordinarily took food and money
·     Christians were also harassed by the government, who would interrogate them and accuse them of aiding the Kurds and demanding bribes
·     From July 1956, the applicant had undergone three months of military training. He was discharged after paying 100 Iraqi dinars in order to obtain military exemption
·     in 1974, the applicant relocated his family to Baghdad. However, the harassment and intimidation continued because of their Christian faith. For instance, they had to pay extortion money in order to be allowed to work
·     in the late 1980s, there was an attempt to conscript the (then almost [age] year-old) applicant for military service. This was part of Saddam’s radical Arab nationalisation. The applicant claimed he had refused this conscription attempt
·     in 2014 the Islamic State (IS) commenced to target Christian villages, especially in the Nineveh Plain. The Christians resident of Baghdad also started to receive more threats
·     in June 2016, the applicant suffered a home invasion and robbery (in Baghdad) undertaken by four men in masks. About 10 days later on his house fence, someone had written “if you don’t leave you will be killed in your house”
·     the applicant and his family then returned to Dohuk (at hearing the Tribunal understood this occurred around June 2016) - after having lived in Baghdad for around 40 years. He then believed he would continue to live in [Town 1], Dohuk for the rest of his life
·after discussing this at hearing, the Tribunal accepts the applicant was subject to a home invasion in June 2016 in Baghdad, that he and his daughters and son then left the home to live in [Town 1]. However, the son (the son’s wife, two daughters and one son), shortly thereafter returned to the home (in Baghdad) and they still reside there. The son also then continued his work with an [organisation] based in Baghdad which assisted persons who travelled there
·     however, the Kurdish Democratic Party (KDP) – in and around [Town 1] - was directly and indirectly forcing Christians out of the area and seizing their lands
·agent submissions of 23 June 2021, indicated the applicant’s land in his home village had been seized ‘decades ago’ – and the applicant had ‘taken a calculated risk by retaining his presence in [Town 1] with his two daughters who (currently) reside there with their respective families’
·     When discussed at hearing, the Tribunal understood the ongoing land disputes between Kurds and returning Christians were said to be an indication of the ongoing mistreatment of Christians in Kurdish areas. However, the applicant was not in any ongoing land dispute
·     in December 2016, the applicant travelled to Australia to visit a daughter ([name deleted])
·     he now seeks protection in Australia as in [Town 1], Dohuk he was harassed by the Kurds and in Baghdad he was harassed by the Arabs
·     the applicant believes that because he is a Assyrian Chaldean Catholic Christian in areas dominated by Arabs and Kurds, he will be killed
In their decision, the delegate noted the applicant claimed that five of his children have left Iraq over the years; though two of the applicant’s daughters remain living in [Town 1] after having fled from Baghdad (both are married with families); and where the applicant’s Assyrian Chaldean Catholic Christian family had previously been living for several generations. His son resides in Baghdad.
In agent submissions to the Tribunal dated 23 June 2021, it was claimed inter alia the applicant was a Assyrian Chaldean Catholic, that he had a well-founded fear of being harmed by Arabs and Kurds dominating the area of the KRI; that Human Rights Observers have regularly issued reports concerning security forces of the Kurdish Political Parties who had committed human rights abuses, including conducting arbitrary or unlawful detention and conducting enforced disappearances; that Christian land has been appropriated; that limited legal remedy is available to seek redress; and the applicant feared harm for reason of his religion. The agent also referred to country information, and ‘illustrative security incidents’, and the Tribunal has considered same prior to drafting this decision.
The agent also referred to the DFAT travel advice for Iraq dated 23 June 2021, which stated in part:
Do not travel to Iraq, including the Kurdistan Region of Iraq, due to:
· the volatile security situation and very high risk of violence, armed conflict, kidnapping and terrorist attack;
· the health risks from the COVID-19 pandemic and the significant disruptions to global travel
By statutory declaration dated 23 June 2021, the applicant’s granddaughter advised how the applicant would reveal his circumstances in Iraq, including the ‘sad and devasting stories about him and other Christians living in Iraq’; and that he finds it difficult to sleep. The granddaughter continued that the applicant said that in 2016, four armed men had threatened to kill him if he did not comply with their demands. The granddaughter also sought to corroborate some of the applicant’s other claims; including that 900 residents in the applicant’s village were killed in ‘early 1900’; and that the applicant would suffer should he return to Iraq.
Country information:
Regarding the Kurdish Region of Iraq (KRI) - Assyrians constitute Iraq’s indigenous Christian population and now number between 600,000 and 800,000. In 2003 their population was estimated at 1.4 million, and they now constitute a third of Iraqi refugees in neighbouring countries.[4]
[4] "The struggle to exist", Assyrian Council of Europe, Hummurabi Human Rights Organization, 01 February 2010, CIS19611.
Even prior to the decline in Christian population, the community was heavily centred either in the KRI (especially in Dohuk governorate) or in nearby portions of Iraq (Nineveh governorate.) Since the rise of ISIS and the fall of Mosul, the relative security of the KRI has led to a further concentration of Christians in the area. Consequently, Christians in the KRI remain a relatively prominent religious and political force, even as the overall Iraqi Christian population decreases.[5]
[5] "Wilting in the Kurdish Sun: The Hopes and Fears of Religious Minorities in Northern Iraq", U.S. Commission on International Religious Freedom (USCIRF), 01 June 2017, CISEDB50AD4466.
Following the increasing presence of IS in northern Iraq in 2014 and 2015, many Christians from these areas were displaced to other parts of the country, and much of the (at least remaining) Iraqi Christian population is now believed to be residing in the KRI,[6] in the Erbil district of Ainkawa[7] (approx. 100kms southwest of Faysh Khabur). Kurdish authorities have publicly pledged their support for Christians living in the region[8] and instituted laws aimed at protecting religious minorities more broadly, and as a result, religious minorities reportedly feel more secure and protected in this region (at least around 2017[9]). Also in 2017, one of the biggest churches was opened in the KRI, demonstrating support for Christians in the region.[10] However, there are still reports of societal and official discrimination against Christian communities in the KRI. Christian communities claim the KRI government has expropriated homes owned by Christians who have fled violence in 2006-2008 and pre-2003.[11] The Kurdish authorities have denied Christian communities their right to assemble and peacefully demonstrate against land appropriations.[12] Moreover, Christians reportedly face intimidation and lack of access to services.[13] Only 50 evangelical Christian families remain in the KRI, down from 5000 in 2013.[14]
[6] ‘US Commission on International Religious Freedom 2016 Annual Report – Iraq’, US Commission on International Religious Freedom, 2 May 2016, p. 101, CIS38A8012855; ‘Undeterred by war, Santa Claus is coming to Kurdistan’, Rudaw (Iraq), 24 December 2015, CXBD6A0DE17449; ‘As Easter nears, Christian refugees pray for peace and return to their homes in Nineveh’, Rudaw (Iraq), 9 March 2017, CXC9040664776; ‘Caught in the pincers, Iraqi Christians are the world’s forgotten people’, Herald Scotland, 4 March 2017, CXC9040664779.
[7] ‘EASO COI Meeting Report – Iraq’, European Asylum Support Office (EASO), 11 July 2017, p. 20 CISEDB50AD4807; ‘As Easter nears, Christian refugees pray for peace and return to their homes in Nineveh’, Rudaw (Iraq), 9 March 2017, CXC9040664776.
[8] 'Iraq: Security situation in Dohuk [Dahuk], including ISIS (Islamic State of Iraq and Syria, or Islamic State of Iraq and al-Sham) [Islamic State (IS), Islamic State of Iraq and the Levant (ISIL), Daesh] activities and targeting of Christians; treatment of Christians by Kurdish authorities in Dohuk, including state protection (2014-March 2016)', Immigration and Refugee Board of Canada, 11 March 2016, CX6A26A6E15761.
[9] ‘Wilting in the Kurdish Sun: The Hopes and Fears of Religious Minorities in Northern Iraq’, U.S. Commission on International Religious Freedom (USCIRF), 1 June 2017, p. 9, CISEDB50AD4466.
[10] ‘International Religious Freedom Report for 2016 – Iraq’, US Department of State, 15 August 2017, Sec.2, OGD95BE927104.
[11] Wilting in the Kurdish Sun: The Hopes and Fears of Religious Minorities in Northern Iraq’, U.S. Commission on International Religious Freedom (USCIRF), 1 June 2017, p. 8 & 39, CISEDB50AD4466; Country Information Report for Iraq’, Department of Foreign Affairs and Trade, 26 June 2017, p. 14, CISEDB50AD4631; 'Iraq: Security situation in Dohuk [Dahuk], including ISIS (Islamic State of Iraq and Syria, or Islamic State of Iraq and al-Sham) [Islamic State (IS), Islamic State of Iraq and the Levant (ISIL), Daesh] activities and targeting of Christians; treatment of Christians by Kurdish authorities in Dohuk, including state protection (2014-March 2016)', Immigration and Refugee Board of Canada, 11 March 2016, CX6A26A6E15761.
[12] ‘Wilting in the Kurdish Sun: The Hopes and Fears of Religious Minorities in Northern Iraq’, U.S. Commission on International Religious Freedom (USCIRF), 1 June 2017, p. 39, CISEDB50AD4466.
[13] Country Information Report for Iraq’, Department of Foreign Affairs and Trade, 26 June 2017, p. 14, CISEDB50AD4631.
[14] ‘International Religious Freedom Report for 2016 – Iraq’, US Department of State, 15 August 2017, Sec.1, OGD95BE927104.

The country information considered also indicated that issues surrounding the ownership of Christian land has continued for decades. Generally, two types of land appropriation exist. Significant portions of the claims are long standing land ownership issues. Through the 1960s, and 1970s, Assyrians were caught up in various regional uprisings and suppressions. In the 1980s and 1990s, Assyrians were among groups targeted by Saddam Hussein’s campaigns. As a result of these events, large portions of the population fled their homes and land, while continuing to hold the deeds to the land.[15]
[15] "Wilting in the Kurdish Sun: The Hopes and Fears of Religious Minorities in Northern Iraq", U.S. Commission on International Religious Freedom (USCIRF), 01 June 2017, CISEDB50AD4466.
Assyrian Christians have complained of land appropriations by ethnic Kurds. This is especially true in the countryside in Dohuk governorate and around Zakho, and in the Nahla Valley area. In some cases the appropriations emerge from long-standing disputes complicated by population displacements and resettlements. In other cases, the origins of the disputes are more recent, and appropriations may have occurred with the blessing, or tacit consent, of Kurdish officials. The same report stated that Christian citizens of the KRI have issued complaints and held protests against Kurdish residents for attacking and seizing their land and villages in the provinces of Dohuk and Erbil. In April 2016 Kurdish security forces blocked Christians from traveling through checkpoints to attend a demonstration against land appropriation, which was to be held in Erbil, where Asayish (KRG security services) have turned back individuals with ID cards marked “Christian” regardless of purpose of travel.[16]
[16] Ibid.
In respect of the KRG response on the above practices the same report stated that Mariwan Naqshbandi, representative of the Ministry of Endowment and Religious Affairs, has stressed that in many cases Christians abandoned the land, only returning recently and after Kurdish citizens refused to leave, the Ministry of Endowment and Religious Affairs issued a fatwa prohibiting such practices. It has also been reported that there were instances of recent appropriations as the work of corrupt local officials’, who have subsequently been investigated and punished.[17]
[17] Ibid.
Further information stated:
A new report issued by Assyrian Policy Institute showcases the plight of Assyrian Christians in Iraq struggling to survive as victims caught between Turkey and the terrorist organization PKK. The Kurdistan Workers Party (PKK) operates primarily in southeastern Turkey, northeastern Syria and northern Iraq. As Turkey seeks to combat the PKK, they routinely order airstrikes and ground initiatives well into Iraq’s borders. It is here that Assyrians sustain serious attacks as innocent bystanders.
…..
Further exacerbating the issue, Iraqi and KRG forces inadequately respond to the threats against its people. Assyrians also have little faith or hope in their ability to do so. ICC’s joint report on Turkey cites one Assyrian as saying, “the PKK is trying to show a good picture. The only problem we have is that when the PKK comes near our villages, there are airstrikes because Turkey attacks them. In our village, people don’t know where Turkey will target. So, we don’t know where to go.” [18]
And:
In 2014, IS controlled the territories around Mosul in Northern Iraq and expelled Christians from Nineveh Plains. According to some estimates, more than 100,000 Christians fled from Nineveh Plains to the autonomous Kurdish regions.
Many never returned after the defeat of IS in 2017. Those who did had to face the Shiite militant groups who helped the Iraqi government defeat IS and controlled some Christian territories.
Until the Iraqi government had tamed these militias and had political control over them, Christians had skirmishes with them over properties and lands. According to media reports, many more Christians left Iraq in this period.
`In short, the U.S. invasion of Iraq started a cycle of violence that put Christianity under threat.[19]
[18] NEW REPORT CONDEMNS TURKISH AIRSTRIKES NEAR ASSYRIANS, 22 JANUARY 2021, PERSECUTION INTERNATIONAL CHRISTIAN CONCERN, NEW REPORT CONDEMNS TURKISH AIRSTRIKES NEAR ASSYRIANS | PERSECUTION, ACCESSED 29 JUNE 2021.
[19] POPE’S UPCOMING VISIT BRINGS ATTENTION TO THE DWINDLING POPULATION OF CHRISTIANS IN IRAQ MARCH 4, 2021 12.26AM AEDT, THE CONVERSATION, POPE'S UPCOMING VISIT BRINGS ATTENTION TO THE DWINDLING POPULATION OF CHRISTIANS IN IRAQ (THECONVERSATION.COM) , ACCESSED 29 JUNE 2021.
Regarding Baghdad, the country information stated:
2.11 Shi’a are predominantly located in the south and east of the country and make up the majority population in Baghdad, … Sunnis form the majority in the west and centre, while Kurds are the majority in the KRI in the north. The increase in sectarian tensions and a deepening focus on communal identity in the years following the March 2003 US led invasion has seen a reduction in the number of ‘mixed’ areas in Baghdad. …
2.8 Demographic data for Iraq is unreliable, but most estimates put the country’s population at between 38 and 40 million. …
2.12 According to the Office of the UN High Commissioner for Refugees (UNHCR), around 6 million Iraqis have been displaced across the country since the beginning of 2014. …
2.27 Despite the strong legislative framework and protections, international observers report that corruption in Iraq is endemic, systemic and a major threat to the country’s stability. … Significant protests took place, including in Basra and southern Iraq from July-September 2018, and in Baghdad and southern Iraq from October 2019 onwards …
2.56 Despite its territorial defeat in December 2017, Da’esh remains a major perpetrator of abuses and atrocities. These abuses are particularly evident in Anbar, Baghdad, Diyala, Kirkuk, Ninewah and Salah al-Din Governorates where Da’esh units have continued to attack electricity and water infrastructure, abduct and kill civilians and attack security forces.
And:
2.54 The security situation in Iraq, while varying according to location, is highly unstable and fluid. Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire, assassinations and kidnapping for ransom. Targets include government security forces, government offices, diplomatic missions, coalition and Iraqi military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure.
Regarding Christians in Iraq:
3.46 The general decline in tolerance towards ethnic and religious minorities from majority communities in Iraq since 2003 has significantly affected Christians. Local sources report increased harassment and violence in areas where Christians are a minority, including Shi’a areas of Baghdad or in Basra. The Christian population has declined considerably since the March 2003 US-led invasion from a pre-2002 population estimate of between 800,000 and 1.4 million persons. According to Christian leaders, there are now fewer than 250,000 Christians remaining in the country, with the largest population – at least 200,000 – living in the Ninewah Plain and the KRI. According to estimates provided by Christian groups, the number of Christian families leaving Iraq daily ranged from 10 to 22 in 2018. …
…..
3.50 Like other religious minority communities, Christians suffered greatly during the Da’esh occupation in northern Iraq, with many forcibly converted to Islam, abducted, raped and/or killed. Da’esh destroyed religious sites including, in January 2016, the 1,400 year old Monastery of Saint Elijah, the oldest Christian monastery in Iraq. Most Christians attempted to flee Da’esh-controlled areas and many have sought safety outside Iraq. Some Christians have complained that the Peshmerga and other security forces took over homes and at least one town abandoned by Christians fleeing from Da’esh. Christians from the Ninewah Plains area who were forced to leave their homes during the Da’esh occupation have reported being prevented from returning to their homes by PMF [Popular Mobilisation Forces] groups. State protection in these circumstances is unlikely to provide adequate recourse.
3.51 DFAT assesses Christians belonging to recognised denominations face a low risk of official discrimination. Like other minorities, Christians face a moderate risk of societal discrimination and violence in areas where they are a minority. … Christians living in areas controlled by PMF groups are likely to keep a low profile to avoid negative attention, including through adopting hijab. Those living in areas where violence continues or who have been displaced face a risk of societal violence similar to that faced by other groups living in those areas or situations.[21]
The applicant’s religion:
[21] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
At hearing, and after discussing same, the Tribunal has decided to accept the applicant’s home area was Baghdad – where he lived for 40 years prior to departing for [Town 1] in or shortly after June 2016. The Tribunal will also accept he had resided in [Town 1] prior to his 1974 move to Baghdad, and for a few months in the second half of 2016, after he fled Bagdad and prior to this travel to Australia.
The delegate noted the applicant lodged a letter from Fr. [A], Parish Priest at the [church] dated 7 January 2017. This letter confirmed that the applicant belonged to their religious community. The delegate also noted the applicant’s Iraqi Citizenship Certificate stated his religion was Christian. The delegate (and now the Tribunal) accepted the applicant was an Assyrian Chaldean Catholic Christian.
At hearing, the applicant also explained that his name ‘[name deleted]’ has religious meaning in Iraq. The information seen by the Tribunal included:
[name] is a male given name or surname used by Arabic-speaking Christians.[22]
[22] ‘[source information deleted], accessed 5 July 2021.
Notwithstanding the outflow of Christians from Iraq over the past (almost) 20 years, the evidence seen by the Tribunal has not satisfied it that every Christian in Iraq has a real chance of suffering serious (or significant) harm for that reason. However, and though from Wikipedia, the above evidence has satisfied the Tribunal that the aged and frail applicant, would be more readily harmed (more likely to suffer ‘negative attention’) due to his religion, as a result of his name; and given the ‘general decline in tolerance towards … religious minorities’, and his frailty, he would be more likely to suffer serious harm. The Tribunal is also satisfied this would occur whether the applicant resided in Baghdad, [Town 1], or elsewhere in Iraq.
Therefore, the Tribunal is satisfied the applicant fears being persecuted for reasons of his religion (s.5J(1)(a)); that there is a real chance he would be persecuted (suffer serious harm) for one of the reasons prescribed (s.5J(1)(b) & s.5J(4)(b)); and that the real chance of persecution relates to all areas of Iraq (s.5J(1)(c)). Based on the country information and findings herein, the Tribunal is also satisfied the applicant has a well-founded fear of persecution as effective protection measures are not available to him in his receiving country (s.5J(2)); that the applicant cannot take reasonable steps to avoid a real chance of persecution, as this would involve the concealment of an immutable characteristic (s.5J(3)(b)); that the essential and significant reason the applicant fears persecution is for reason of his religion (s.5.J(4)(a)); that the persecution would involve systematic and discriminatory conduct (s.5J(4)(c)). The Tribunal is also not satisfied the applicant has available to him effective protection measures in Iraq (s.5LA).
The applicant’s health:
As noted above, the applicant lodged evidence of a range of health issues – including but not limited to, [various medical conditions deleted]. Reference to depression was also made in the more recent medical evidence (as stated above), where the applicant’s depression was said to be in the Extremely Severe symptom category.
The country information stated:
2.33 Iraq’s health indicators are generally poor. …
2.34 The health of Iraq’s population has suffered from decades of conflict and economic sanctions, combined with chronic underinvestment. … The population’s access to basic health services has become increasingly impaired as many health professionals have left the country for security reasons. …[23]
And in particular:
2.37 Despite enormous need, there are very few mental health services or financial support schemes available to the general public. A January 2017 study found there were only around 80 clinical psychologists working in the entire country. Much of the burden for treating mental health issues falls on international non-government organisations (NGOs) such as Medicins sans Frontieres. The absence of community-based mental health care means often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading living conditions. There is significant societal stigma against those suffering from mental health issues, which results in under-reporting of problems and underutilisation of the services that are available. [24]
[23] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
[24] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.
At hearing, the applicant’s daughter stated, and the Tribunal accepts, that only one brother (and the brother’s wife and children) resided in the applicant’s home in Baghdad. That brother was required to donate monies (from his wages) to neighbours (amongst others) in an effort to avoid being targeted for harm by local Muslims and or Militia groups in Baghdad. A few months prior to the Tribunal hearing, the applicant’s young grandson engaged in a fight with a local Muslim boy, and after being contacted by the boy’s family and in order to avoid possible bloodshed, the applicant’s son contacted the applicant’s daughter in Australia and requested money to pay the other boy’s Muslim family. After having discussed this at hearing, and then considering the country information,[25] the Tribunal accepts this as true. After considering the evidence, the Tribunal also understands the applicant’s two daughters (and their families who now reside in [Town 1]), are also in a generally impecunious state. This is relevant as the Tribunal does not believe the applicant’s relatives in Iraq, would have the capacity to ensure he was provided reasonable mental health treatment on return. Neither am I satisfied his daughter in Australia (a single mother who supports her own daughter) would have the ready capacity to fund this treatment for the applicant in Iraq.
[25] UK Home Office, Country Policy and Information Note Iraq: Blood feuds Version 2.0 February 2020; and UK Home Office, Country Policy and Information Note Iraq: ‘Honour’ crimes Version 2.0 March 2021.
In the circumstances, and given the societal stigma attached to mental health in Iraq, the Tribunal will accept the applicant has a real chance of suffering serious harm in Iraq for reason of his membership of a particular social group (being ‘persons suffering from mental health conditions in Iraq’).
After considering the accepted evidence, the Tribunal is therefore satisfied the applicant fears being persecuted for reasons of his membership of a particular social group (s.5J(1)(a)); that there is a real chance he would be persecuted (suffer serious harm) for one of the reasons prescribed (s.5J(1)(b); s.5J(4)(b)); that the real chance of persecution relates to all areas of Iraq (s 5J(1)(c)). Based on the country information and findings herein, the Tribunal is also satisfied the applicant has a well-founded fear of persecution as effective protection measures are not available in to him his receiving country (s.5J(2)); that the applicant cannot take reasonable steps to avoid a real chance of persecution, as this would conceal a psychological disability (s.5J(3)(c)); that the essential and significant reason the applicant fears persecution is for reason of his membership of a particular social group (s.5.J(4)(a)); and that the persecution would involve systematic and discriminatory conduct (s.5J(4)((c)). The Tribunal is also not satisfied the applicant has available to him effective protection measures in Iraq (s.5LA).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Mr S Norman
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K     Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L     Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the n
on‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

[20] DFAT COUNTRY INFORMATION REPORT, IRAQ, 17 August 2020.

[2021] AATA 3537

9 July 2021

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